Excerpt:.....a co-accused has been made admissible subject to certain conditions laid down in section 30 of the indian evidence act.;(b) criminal trial - witness mentions stolen picture as three & identifies 4 pictures--hold, evidence cannot be relied upon & accused cannot be convicted on discrepant evidence.;(c) evidence act - sections 27 & 30--confession--whether only pre-trial confession is admissible--opinion not expressed. - - therefore, the statement of pappal was at any rate, not pre-trial and was clearly admissible under section 30 of the indian evidence act. 7. no doubt, the question in regard to the admissibility of a confession of a co-accused is interesting in its import and the judicial opinion is not uniform and one feels tempted to enter into this controversy but, i..........by them to aziz. on such information having been received by the police under section 27 of the indian evidence act 4 pictures and one idol were recovered from the house of aziz petitioner. eventually, a case was challaned before the additional munsif magistrate, karauli while aziz was charged under section 411, indian penal code, rafeeq and shabbir were accused of an offence under section 379, indian penal code. when the charge was read out to kherati alias pappal he said that he had not broken open the lock. he, rafeeq and shabbir were together and they had stolen the 'murty' from outside. on a consideration of the evidence produced by the prosecution the learned magistrate convicted aziz under section 411, ipc & sentenced him to six months' rigorous imprisonment & rafeeq & shabir.....

Judgment:

B.P. Beri, C.J.

1. The above mentioned three revision-applications are directed against the judgment of the learned Additional Sessions Judge, Gangapur City, dated December 18, 1972, whereby he maintained the conviction and sentence of all the three applicants before me as awarded by the learned Additional Munsif-Magistrate, Karauli.

2. The facts which it is necessary to recall for the purposes of disposing of these petitions briefly stated are these. In between the night of 23rd and 24th of March, 1971. two idols which where fitted in the 'Chhatri' of Gopalji at Keladevi and pictures of Keladevi and Madan Mobanji were stolen from Kela Devi temple. The matter was reported in the police. In course of the investigation, accused Kherati alias Pappal gave information that he had given the tools to one Aziz, the applicant before me, and Rafeeq and Shabbir also gave information to the police that the pictures were given by them to Aziz. On such information having been received by the police under Section 27 of the Indian Evidence Act 4 pictures and one idol were recovered from the house of Aziz petitioner. Eventually, a case was challaned before the Additional Munsif Magistrate, Karauli While Aziz was charged under Section 411, Indian Penal Code, Rafeeq and Shabbir were accused of an offence under Section 379, Indian Penal Code. When the charge was read out to Kherati alias Pappal he said that he had not broken open the lock. He, Rafeeq and Shabbir were together and they had stolen the 'murty' from outside. On a consideration of the evidence produced by the prosecution the learned Magistrate convicted Aziz under Section 411, IPC & sentenced him to six months' rigorous imprisonment & Rafeeq & Shabir under Section 379, Indian Penal Code, and awarded to each one of them six months rigorous imprisonment. Pappal was also awarded six months rigorous imprisonment and, I am told he preferred no appeal. Shabbir, Rafeeq and Aziz assailed the judgment of the learned Magistrate before the Additional Sessions Judge, Gangapur City who found no reason to interfere with the judgment. These persons are before me seeking a revision of the judgments of the courts below.

3. Mr. Tikku leraned Counsel for Rafeeq urged that the prosecution case as disclosed in the first information report and ultimately supported by the prosecution evidence was that three pictures were stolen from the temple but the prosecution has succeeded in making four pictures out of three and this casts a serious doubt on the prosecution story because it has been acquiring embroidery. He urged that the motbir witnesses do not support the prosecution story and, therefore, the entire evidence of discovery thus becomes doubtful. The confession of the co-accused namely, Pappal in order to be admissible, must have been made at a stage before trial and proved in the court as required by Section 30 of the Indian Evidence Act In any event, the confession of co accused Pappal only speaks of 'Moorty' and not about pictures and, therefore, his client is not connected.

4. Mr. M. B L. Bhargava-leraned Counsel for Shabbir-argued that a confession in order to be admissible, must be of pre-trial stage. Further, the discrepancy in the number of pictures taints the prosecution version.

5. Mr. S. R. Bhandari-leraned Counsel for Aziz-submits that the motbirs do not support the prosecution. As a matter of fact, adds the learned cousel, Pappal had left a bedding with Aziz from where the articles were recovered. If the main persons connected with the theft are acquitted there can be no conviction against the alleged receiver of the stolen property. Lastly, he urges that his client has already undergone 37 days imprisonment and that should be enough.

6. Mr. Srimal, learned Additional Advocate General, argued that the trial commenced only after the charge had been framed & the Papal's statement was made in answer to the charge. Therefore, the statement of Pappal was at any rate, not pre-trial and was clearly admissible under Section 30 of the Indian Evidence Act. He also submitted that the proper view in a case such as this is taken in Emperor v. Dip Narain AIR 1915 All 221 and In re Velu Naieker and Anr. AIR 1939 Mad 737. In regard to the discrepancy in the number of pictures recovered Mr. Srimal urged an argument of some subtilty. He argued that the first information report was silent as to the number of pictures stolen & the statement of Mishrilal (PW/1) when he said the pictures and 'moorty' were recovered then he Was simply confusing between an idol and picture and, therefore, the discrepancy is of a minor character. At any rate, the argument of Mr. Bhandari was that Aziz was only the recipient of the stolen property and his conviction under Section 411, Indian Penal Code, cannot be disturbed because nobody challenges that the idol was not recovered from his house and the thief, namely, Pappal, has already been convicted.

7. No doubt, the question in regard to the admissibility of a confession of a co-accused is interesting in its import and the judicial opinion is not uniform and one feels tempted to enter into this controversy but, I think, it is not necessary to examine it in detail in this case. The accepted position of law in regard to confession made by a co-accused is that it must be kept aside and if there is other evidence which needs strength by way of corroboration then the confession of a co accused could be imported to lend strength. If any authority for this proposition is needed, reference may be made to Kashmera Singh v. The State of Madhya Pradesh : 1952CriLJ839 and Haricharan Kurmi v. State of Bihar : 1964CriLJ344 . The reason for this rule stems to be well founded in jurisprudence when confessions of a co-accused right from the days of Roman law were not admissible. Under the common law also they are inadmissible. Even under the Indian Evidence Act applicable to Ceylon the statute forbids its admissibility. In India, however, confession of a co-accused has been made admissible subject to certain conditions laid down in Section 30 of the Indian Evidence Act. Such evidence basically comes from a tainted source which is not available for being tested by cross examination. The only factor which lends reliability it is that ordinarily no one inculpates himself unless he treads the path of truth and sel inculpation-provides it a comparative reliability and, therefore, admissibility. It is not necessary to look into this evidence of a co accused's confession unless there is some evidence which stands in need of corroboration.

8. It is not disputed before me that the only evidence against Rafeeq and Shabbir is one of discovery pursuant to the information provided by them under Section 27 of the Indian Evidence Act. It is indeed a valuable piece of evidence but as urged by Mr. Tikku, it suffers from a clear discrepancy which is aritb matically irreconciable. The first information report is silent as to the number of pictures stolen. It merely says that pictures were stolen. When the matter came to the Court and prosecution led its evidence and Mishrilal (PW 1) was examined his statement precisely stated that he did not find two photos of Deviji (one small and one big) and one small photo of Madanmohanji which bad a brass backing. These three pictures, he did not find in the temple the next morning. When be came to identify he identified all the four pictures said to have been recovered from the house of Aziz. No attempt was made in the re-examination for any explanation of this discrepancy. It was plainly the duty of the prosecution. Now, doubt arises that when the total number of pictures that were stolen from the temple was only three, how it became four at the house of Aziz The witness is certainly not reliable when he identifies all the four pictures as belonging to the temple. When there is such a serious discrepancy in the matter of the discovery it is not reliable evidence. At least, so far as the discovery is concerned, it will not be safe to convict any one on such discrepant evidence. So far as the argument of Mr. Srimal is concerned that the witness seems to be confusing between pictures and idols, I am unable to accept that explonation however ingenious. The reason is, it will be confusing stone for paper In this view of the matter, I do not think that there is any evidence on record which needs any assistance from the confession of the co-accused, and, therefore, I do not propose to decide the debated question whether the confession is pre-trial or post-trial or whether only pre-trial confessions are admissible. I am expressing no opinion on the subject;

9. Thus, the conviction of Rafiq and Shabbir cannot be maintained. It is set aside. They are acquitted. They are on bail and need not surrender.

10. So for as the case of Aziz is concerned, it, is slightly of a different nature. There is evidence on record that from the house of Aziz one idol was recovered and that the said idol was of the temple. The person who had stolen the idol, confessed and stands convicted Therefore, there is no impediment in Aziz's conviction under Section 411 Indian Penal Code Leraned Counsel submits that there is a discrepancy in the number of pictures recovered from him house. Let us ignore it for the s ke of argument. The fact remains that on the information provided by Pappal an idol was recovered from the house of Aziz. Muslims do not normally keep idols in their homes and the idol recovered has been identified to be that of the temple and that it was stolen, stands also proved. Therefore, Aziz has been rightly held guilty under Section 411 Indian Penal Code.

11. Mr. Bhandari urged that he has already been behind the bar for about 37 days and that should be enough in the circumstances of the case. It is a case of theft of an idol in a temple. Thefts of sculpture have acquired some magnitude and recurrence and I an unable to take a lenient view in the situation. The courts below have inflicted six months imprisonment on Aziz I cannot take a view different from the one they have taken and, therefore, I uphold his sentence of six months imprisonment.

12. The revision application of Aziz fails and is hereby dismissed He is on bail. The District Magistrate concerned will immediately take steps to cause his arrest and to send him to jail to serve out the remaining sentence.